Complainant

Respondent

Parties

Abdullah Agha  Syed

Taskforce Security Management Security Services Limited Taskforce Security Management

Representatives

John Daly

Gavin Cumiskey Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034758-001

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00034758-002

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00034758-003

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00034758-004

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034758-006

20/02/2020

The Complainant was a security officer employed by the Respondent from 1st May 2019 until 23rd January 2020.

CA-00034758-001-3

The Complainant withdrew these complaints.

CA-00034758-004

The Complainant who is Indian claims he was discriminated against in allocation of shifts and  dismissal due to his race. He was not aware of any complaints in relation to his performance. He accepted an incident occurred when he was caught asleep in a car on site on 23rd August 2019. He said he had worked from 7am to 3pm and then was asked to work from 7pm to 7am the following morning, so he had to get a nap at 2 am. This was the only time he slept on any job and denies he was asleep on 25th August 2019. He was given a verbal warning after he was caught asleep in a car, but refused to accept this.

The Complainant said the company produced one clock-in report for one site where they say there are gaps in the clock-ins, and he works on lots of sites. He says his clock-ins were much improved after the meeting. He received a letter from the company extending his probation for 3 months on 25th November 2019. He had been complaining that other staff who are Pakistani were receiving better hours and better sites than him. He was receiving lots of 5 hour shifts and working 6 days where other staff were given four 12 hour shifts on sites with better facilities. The Supervisor KB is Pakistani and was allocating the shifts.

He did not attend the meeting on 10th January 2020 and does not remember receiving notification on 9th January 2020 as contact was usually by telephone. The Complainant says he never got a contract of employment. He only received a rainproof jacket after 5 months. He was using a plastic bin liner as he never got the kit. He did not refuse to come in to the office on 13th January 2020, but it was his day off.

He received an email on 13th January 2020 regarding clocking in and replied that the front gate had to be kept open on the site due to maintenance. He notified the company he declined to accept any more 5 hour shifts as he wanted to get full-time shifts. He was dismissed at a meeting on 15th January 2020. The letter of dismissal was handed to him at the meeting, this was prepared in advance. Fair procedures were not applied. The dismissal was disproportionate.

CA-00034758-006

The Complainant withdrew this complaint.

The Complainant was employed by the Respondent as a security guard at various sites from 24th May 2019 until 15th January 2020. He was dismissed due to failure to complete his probation period satisfactorily.

The Complainant was provided with a letter of engagement, employment contract, operational procedures and an induction training session which he signed as completed on 24th May 2019. This included information on pay, entitlements, grievance and disciplinary procedures.

On 31st October 2019 the company sought an explanation of clock-in gaps in the Complainant’s patrols. Prior to 22nd November 2019 the Complainant alleged he was being treated less favourably than Pakistani employees and was receiving less favourable hours. He was told he was receiving an average of 43 hours and was satisfied with this. This issue was not raised again by the Complainant.

A meeting was held with the Complainant on 22nd November 2019, when performance issues of failing to clock in, and being caught asleep were raised. The Complainant was given a written warning. Security officers are required to patrol every hour on the hour and clock-in.

The Director gave evidence that other employees do not clock-in. If the weather is extreme security officers can write this in the login book on site. The Manager gave evidence that the Complainant fell asleep on site and was moved to a smaller site. He was given an average of 43 hours per week.

 On 25th November 2019 the Complainant’s probation period was extended by three months. The Complainant’s hours were discussed in November and he was given four 12 hour shifts over Christmas. After Christmas the client went back to work Monday to Friday, so there was only weekend work available. The Manager said the Complainant did not respond to his emails from 9th January to 13th January 2020 and refused to come into the office on 13th January 2020. The Complainant refused 5 hour shifts and his clocking in was poor.

The Complainant said he was a full-time worker and should not be expected to work 5 hour shifts, and these should be given to students. The Complainant said he was not refusing the roster but was seeking alternative shifts. The company said there were no alternative shifts.

On 15th January 2020, the Complainant was informed he was dismissed as he did not demonstrate the necessary ability and skill to perform the role. He was given a right of appeal within 5 days. The Complainant contacted the company seeking to appeal this on 29th January 2020 which was out of time and the company refused. The Complainant never raised a grievance and was not dismissed due to raising discrimination in the workplace.

CA-00034758-001-3

The Complainant alleges he did not receive breaks in breach of S11, 12, 13 of the Organisation of Working Time Act 1997. The Respondent is a security service within the meaning of Statutory Instrument 231/2017 and the Act does not apply to the Complainant.

The employer denies any breach of the Terms of Employment (Information) Act 1994. A contract of employment is given when probation is completed. The Complainant signed receipt of all induction materials.

The employer denies any breach of equality or the Equal Status Act 2000-2015.

I have heard and considered the written and oral submissions and evidence of the witnesses for the parties.

CA-00034758-004

The Complainant is Indian. He alleges that he has been discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015 in allocation of shifts and his dismissal as a Security Officer by the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “race ground” is defined in the Acts and is on the basis of different race, colour, nationality or ethnic or national origins.

The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides that:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant was unhappy about allocation of shifts to him weekly over 6 days and alleges Security Officers of Pakistani origin were receiving better hours weekly over 4 days and sites. He complained about this to the Respondent in November 2019. In November 2019 the Complainants probation was extended by three months due to concerns about non-compliance with clocking in procedures and being asleep. The Respondent says better hours were not available, longer shifts were given to the Complainant over Christmas. Evidence has been submitted of repeated non compliance with clocking in by the Complainant when his probation was extended. The Complainant was dismissed due to repeated performance issues. The Complainant has not adduced any evidence to support his complaints of less favourable treatment on the race ground. The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

I find no prima facie case of discrimination on the race ground has been made out by the Complainant.

The complaint of discrimination fails.

Prima facie case